The Explanation Of Fuller’s Principle Of Legality

When we think about the question of "What is Law",we are actually exploring the basic nature of the law,and beyond that,a follow-up thought is what the law means to our lives once we know its nature.A proper theory of law aims to answer two aspects:firstly,the question of the picture of the presentation of law as an institutional practice in the common life of human beings,which leads to the question of the normative character of law;secondly,the question of what the existence of law as a practical norm concerning the life of every human being means for human life,i.e.,the question of the meaning of law.Fuller tried to give his own answer to the above questions by proposing the principle of legality and considering it as the internal morality of law.He realized that although the theory of separation(between law and morality)proposed by legal positivism at the time could indeed liberate law from moral norms,in the context of modern political authorities wielding the coercive power of the state,the realistic concerns of positivist jurisprudence could easily be exploited by dictators like Hitler,leading to the legal system was ruthlessly trampled and destroyed.In order to avoid the practical dilemma encountered by legal positivist theory,Fuller sees law as the cause of subjecting human behavior to the governance of rules,and through this purposive view of legal cause,he paints a normative picture of the legal system in practice as it should be,thus establishing a standard of evaluation for law,i.e.,the principle of legality,which requires compliance by the subjects involved in legal cause in order to be implemented in social reality.The principle of legality needs to be observed by the subjects of legal undertakings in order to be implemented in social reality,and this obligation to set responsibilities for the subjects of practice is the core point of the principle of legality which constitutes the intrinsic morality of law.Fuller treats law as a rule and derives the eight requirements of the principle of legality guiding the construction of a legal system from a system of rules,intending to derive the normative features within law from a system of rules as a picture of what a legal system should be in human life.Through the parable of Rex’s failed law-making,it derives eight specific requirements that must be satisfied for the construction of a rule system as a legal system,five of which are common to the rule system,namely,the openness of the rules,the comprehensibility of the content of the rules,the avoidance of contradictions within the rules,the realizability of the requirements of the rules,and the stability of the rules that should not change frequently,and the other three are characteristic requirements of the legal system,namely,the generality of the rules and the retroactivity of the rules.The other three requirements are the characteristics of the legal system,namely,the generality of the rules,the non-abusability of the rules retroactively,and the consistency of the rules in terms of publication and implementation.The eight requirements of the principle of legality are practical,intrinsic and subject-dependent,the most important of which is subject-dependence,which makes the principle of legality an intrinsic morality of law.The reason why the principle of legality constitutes "the internal morality of law" is that its implementation in the common life of human beings cannot be separated from the real activities of the practical subjects,which actually point to the responsibility of the legal creators and enforcers in the process of legal undertakings,i.e.,the obligatory regulations of the practical subjects.This moral position shows a high degree of similarity with Kant’s deontology.The division between the doctrine of right and the doctrine of virtue corresponds to the classification of the morality of duty and the morality of aspiration.The principle of legality can become the morality within the law,and its practical premise lies in the fact that it regards "human beings" in social life as rational practical subjects capable of self-determination,responsible for their actions,and having free will,so that the principle of legality has the possibility of setting responsibilities for practical subjects.The principle of legality,as a specific content of the morality within law,is to explain that the creators and enforcers of law have the responsibility to comply with the requirements of the principle of legality in the process of participating in legal undertakings,so as to ensure the presentation and implementation of the legal system in human life.In order for the principle of legality to become a practical law in the Kantian sense,and thus to set the responsibility for the practical subject,it must pass the test of universality,and after a reflexive logical reasoning,the principle of legality has the characteristic of universal applicability in the general sense,in this sense,Fuller regards the principle of legality as morality within law.It is the similarity between law and morality in their practical presentation that makes the complete separation between law and morality impossible,as legal positivism advocates.